Lawson v. Singletary

United States Court of Appeals,
Eleventh Circuit.
No. 94-4663.
Robert Lee LAWSON, on behalf of himself and all others similarly
situated, Plaintiffs-Appellees,
v.
Harry K. SINGLETARY, Secretary, Florida Department of
Corrections; S.W. Sprouse, Superintendent, Hendry Correctional
Institution; William E. Counselman, Educational Supervisor;
Stephen Spencer, Chaplain, Hendry Correctional Institution; and
Paul Coburn, Assistant Superintendent, Hendry Correctional
Institution, Defendants-Appellants.
May 29, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 83-8409-CIV-ARONOVITZ), Sidney M.
Aronovitz, Judge.
Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior
District Judge.
PER CURIAM:
This case began as a pro se complaint by plaintiff-appellee
Robert Lawson, filed in 1983. Counsel was appointed, and a class
certified. The plaintiff class represented by Lawson (hereinafter
"Hebrew Israelites" or "plaintiffs") is made up of members of the
Hebrew Israelite faith currently serving time in the Florida prison
system. The basis for their original complaint was that officials
of the defendant-appellant, the Florida Department of Corrections
(hereinafter "the Department"), refused to allow certain religious
texts, published by the Hebrew Israelites at their headquarters,
the "Temple of Love," into the prisons so that Hebrew Israelite
inmates could have access to them. The plaintiffs seek injunctive
*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
relief. The Department claimed that the Hebrew Israelite texts at
issue contain "highly-charged, anti-white, racism" and thus
presented a serious threat to security and order within Florida's
prisons.
Soon after this litigation began, the Department, through head
chaplain Counselman, attempted to create an informal redaction
policy similar to the law now in place that would allow prison
chaplains to remove the most objectionable portions of incoming
religious materials. See Lawson v. Wainwright, 641 F. Supp. 312,
320-321 (S.D.Fla.1986). The materials at issue in this case were
returned by Counselman to Yahweh ben Yahweh, the leader of the
Hebrew Israelites, and ben Yahweh was asked to remove those
statements that the Department thought were a threat to prison
order and security. Once these sections were removed, Counselman
assured ben Yahweh, the materials would be allowed into the
prisons. Id. at 321. This original redaction policy, however, was
poorly defined and sporadically enforced, and at times entire
documents were excluded when only portions of those documents
presented a threat to prison order and security. Id. at 317-319.
This case has a tortured procedural history. In 1986, the
district court held that the Department's outright ban of these
religious texts violated the plaintiffs' Free Exercise rights under
the First Amendment. Lawson v. Wainwright, 641 F. Supp. 312
(S.D.Fla.1986) (hereinafter Lawson I ). The primary concern in the
first appeal to this Court was the determination of the proper
standard by which to evaluate the plaintiffs' Free Exercise claims.
Lawson v. Dugger, 840 F.2d 779 (11th Cir.1988) (hereinafter Lawson
II ). Following this Court's 1987 decision, the Supreme Court
rendered its decision in Thornburgh v. Abbott, 490 U.S. 401, 109
S. Ct. 1874, 104 L. Ed. 2d 459 (1989), in which the Court reiterated
the principle that prisoner constitutional rights claims are to be
evaluated under the rational basis standard. The Department's
petition for certiorari in this case was granted, and the 1987
opinion of this Court was vacated and the case remanded for further
consideration in light of Thornburgh. Dugger v. Lawson, 490 U.S.
1078, 109 S. Ct. 2096, 104 L. Ed. 2d 658 (1989) (hereinafter "Lawson
III"). This Court in turn remanded to the district court. Lawson
v. Dugger, No. 86-5774, 897 F.2d 536 (11th Cir. Feb. 1, 1990).
Again, however, a change in the law affected the relevant standard.
A few days before the district court held its status hearing on
remand, Congress passed the Religious Freedom Restoration Act, 42
U.S.C. § 2000bb et seq. (hereinafter "RFRA"), which purports to
reestablish through statute the compelling interest test for
neutral laws that incidentally but substantially burden the free
exercise of religion.1 Upon review, the district court interpreted
the relevant official activity in this case to be an outright ban
on certain incoming religious materials. Then, applying the "least
restrictive means" prong of the new RFRA test to the outright ban,
the district court held that the Department's activity violated
RFRA. Lawson v. Dugger, 844 F. Supp. 1538, 1542 (S.D.Fla.1994)
(hereinafter "Lawson IV").
Our primary task is to flesh out the meaning of the new RFRA
standard as it applies in the prison context, and in particular as
1
RFRA was signed into law on November 16, 1993.
it applies to this case.2 Two interrelated preliminary matters
2
However, because we conclude that Rule 33-3.012 on its face
passes even the most restrictive compelling interest test that
Congress may have contemplated in drafting RFRA, we need not and
do not today resolve the question of RFRA's constitutionality.
See Jay S. Bybee, Taking Liberties with the First Amendment:
Congress, Section 5, and the Religious Freedom Restoration Act,
48 VAND.L.REV. 1539 (1995) (questioning whether RFRA is an
unconstitutional application of federal power to the states not
authorized by § 5 of the Fourteenth Amendment); Christopher L.
Eisgruber & Lawrence G. Sager, Why the Religious Freedom
Restoration Act is Unconstitutional, 69 N.Y.U.L.REV. 437 (1994)
(questioning whether RFRA violates the separation of powers
doctrine, the Establishment Clause, and § 5 of the Fourteenth
Amendment, and noting that, "RFRA not only defies [Employment
Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S. Ct. 1595,
108 L. Ed. 2d 876 (1990) ], it misreads the Supreme Court's
jurisprudence prior to Smith; and RFRA not only gives religious
believers far more than their constitutional due, it does so in a
fashion that is itself constitutionally objectionable precisely
in terms of religious freedom."); Scott C. Idleman, The
Religious Freedom Restoration Act: Pushing the Limits of
Legislative Power, 73 TEX.L.REV. 247 (1994) (suggesting that RFRA
may violate the Establishment Clause of the First Amendment to
the Constitution, in part because it expands the bounds of Free
Exercise beyond the point which the Court has in the past taken
it, by establishing a preference for religiosity over
non-religiosity); see also Everson v. Board of Ed. of Ewing
Twp., 330 U.S. 1, 15, 67 S. Ct. 504, 511, 91 L. Ed. 711 (1947)
("The "establishment of religion' clause of the First Amendment
means at least this: Neither a state nor the Federal Government
can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another
...") (emphasis added); Torcaso v. Watkins, 367 U.S. 488, 495,
81 S. Ct. 1680, 1683, 6 L. Ed. 2d 982 (1961) ("We repeat and again
reaffirm that neither a State nor the Federal Government can
constitutionally force a person to profess a belief or disbelief
of any religion. Neither can constitutionally pass laws or
impose requirements which aid all religions as against
non-believers ...") (internal quotation omitted) (emphasis
added); Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29
L. Ed. 2d 745 (1971) (statute must have secular legislative
purpose, and must primarily neither advance nor inhibit religion,
nor foster excessive government-religion entanglement, to avoid
reach of Establishment Clause); County of Allegheny v. ACLU, 492
U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (same); Texas
Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S. Ct. 890, 103 L. Ed. 2d
1 (1989) (invalidating, on Establishment grounds, Texas law
granting sales tax exemption to religious publications); Board
of Ed. of Kiryas Joel v. Grumet, --- U.S. ----, ----, 114 S. Ct.
2481, 2487, 129 L. Ed. 2d 546 (1994) ("A proper respect for both
the Free Exercise and the Establishment Clauses compels the State
3
require discussion: Florida's new Rule 33-3.012 governing the
admissibility into Florida prisons of publications, including
religious materials; and the propriety of our consideration in
this appeal of the Rule's redaction policy.
I. RULE 33-3.012 AND REDACTION
In addition to the passage of RFRA, another significant change
in the complexion of this case occurred after remand to the
district court. On December 17, 1991, Florida amended Rule 33-
3.012, inter alia, to incorporate a formal and more precise
redaction policy. The portions of the Rule relevant to this case
are as follows:
(4) Inmates shall be permitted to receive publications except
when the publication is found to be detrimental to the
security, order or disciplinary or rehabilitative interests of
the institution or when it is determined that the publication
might facilitate criminal activity. Publications shall be
rejected when one of the following criteria are met:
to pursue a course of neutrality toward religion, favoring
neither one religion over others nor religious adherents
collectively over nonadherents.") (internal citations omitted).
The Fifth Circuit in Flores v. City of Boerne, 73 F.3d 1352 (5th
Cir.1996), rejected an argument that RFRA on its face violates
the Establishment Clause, noting that the statute expressly
limits its application such that the Establishment Clause shall
not be affected. See 42 U.S.C. § 2000bb-4, cited in Flores, 73
F.3d at 1364; but see Sable Communications of California, Inc.
v. F.C.C., 492 U.S. 115, 129, 109 S. Ct. 2829, 2838, 106 L. Ed. 2d
93 (1989) ("To the extent that the federal parties suggest that
we should defer to Congress' conclusion about an issue of
constitutional law, our answer is that while we do not ignore it,
it is our task in the end to decide whether Congress has violated
the Constitution. This is particularly true where the
Legislature has concluded that its product does not violate the
First Amendment."). Because we conclude that Rule 33-3.012 on
its face passes the RFRA test, we need not address whether RFRA
violates the Establishment Clause. See Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 341, 56 S. Ct. 466, 480, 80 L. Ed.
688 (1936) (Brandeis, J., concurring).
3
FLA.ADMIN.CODE ANN. § 33-3.012 (1995).
. . . . .
(e) It depicts, describes or encourages activities which may
lead to the use of physical violence or group disruption;
. . . . .
(h) It otherwise presents a threat to the security, order or
rehabilitative objectives of the correctional system or the
safety of any person. If only a portion of a publication
meets one of the above criteria for rejection, the entire
publication shall be rejected unless the reading material is
of a religious nature. In the case of religious material, the
inmate shall be advised that he may receive the materials only
after the inadmissible portion is removed. The inmate shall
make the decision whether to return the material to the sender
or to receive the admissible portions after the institution
has excised the inadmissible material, and the inmate may
appeal the institution's determination that the material must
be excised or returned. The institution shall not take any
action to excise or return inadmissible reading material until
the inmate's appeal is concluded or the time for appeal has
passed.
FLA.ADMIN.CODE § 33-3.012(4) (1995) (emphasis added).4 Appeals from
decisions to redact certain sections from religious materials are
heard by a literature review committee made up of the Assistant
Secretary of Operations, one superintendent, one security
administrator, the library services administrator and one
institutional librarian. FLA.ADMIN.CODE § 33-3.012(2).
The plaintiffs contend that the Department did not
specifically argue redaction in its briefs to the district court at
the original trial nor on remand, and did not do so until the
Department's motion for rehearing. The plaintiffs argue
accordingly that the Department has waived the issue. The district
court agreed with the plaintiffs and denied the Department's motion
4
Rule 33-3.012 is similar in some respects to federal prison
regulations governing the admissibility of reading materials.
See 28 C.F.R. § 540.71. However, the Federal regulations do not
have a special exception for religious materials permitting
redaction as opposed to total exclusion.
for rehearing. The district court declined to consider redaction,
relying instead on the procedures in use by the Department when
this litigation began in 1983, which the district court construed
to be an outright ban on the religious materials introduced at
trial.
This Court interprets the Department's motion for rehearing
on the redaction issue as a Fed.R.Civ.P. 59(e) motion. McGregor v.
Bd. of Com'rs of Palm Beach County, 956 F.2d 1017, 1020 (11th
Cir.1992). We review the district court's denial of the
Department's motion for rehearing for abuse of discretion. O'Neal
v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992); American Home
Assur. Co. v. Glen Estess & Assoc., Inc., 763 F.2d 1237, 1238-39
(11th Cir.1985). In American Home, we affirmed a district court's
denial of a Rule 59(e) motion that raised for the first time a
choice of law issue. American Home, 763 F.2d at 1239. We noted
that, "[t]he decision to alter or amend judgment is committed to
the sound discretion of the district judge and will not be
overturned on appeal absent an abuse of discretion." Id. at 1238-
39.
Several reasons persuade us that the district court abused
its discretion by failing to consider redaction, which stands at
the core of the current Florida regulation. In our judgment, it
would be impossible to evaluate the facial constitutionality of
Rule 33-3.012, and its compatibility with RFRA, without considering
redaction, which is the essence of the Rule's policy toward
religious publications. This case involves only injunctive relief.
Therefore, the only viable issues are the facial validity of Rule
5
33-3.012, and its validity as applied. Because these issues
cannot be intelligently assessed without considering redaction,
justice requires that we do so.
Finally, a federal court order dictating the security-related
activities of state prison officials raises serious comity
concerns. The maintenance of prison security, which is central to
this case, is a matter of immense importance to the State of
Florida and, of course, responsibility for prison security is
committed to the State. Even if the Department's deficiencies in
the presentation of this issue to the district court might lead us
to impose waiver in some other context, interests of comity combine
with the foregoing factors to persuade us otherwise in this case.6
Assuming, as we hold below, that Florida's Rule 33-3.012, with its
redaction policy, is facially valid, it would constitute manifest
injustice to enjoin state prison officials from the exercise of
their duties to maintain prison security based on the technicality
that their attorneys failed to present an issue to the district
court with sufficient clarity. We conclude that the district court
5
Plaintiffs' efforts in this litigation have focussed only
on obtaining injunctive relief, either because that is their only
real interest or because of the likelihood that qualified
immunity will bar any claim for damages. Injunctive relief is,
of course, prospective, and thus only Rule 33-3.012 is at issue.
The validity of the Department's application of its prior policy,
with its informal, imprecise and sporadically enforced redaction
policy, is moot.
6
We can discern no prejudice to the plaintiffs as a result
of our consideration of the Department's current redaction policy
embodied in Rule 33-3.012, because they have had a full
opportunity in brief and oral argument to discuss the effect of
redaction on the facial validity of the Rule.
abused its discretion in failing to consider the redaction issue.7
II. THE RELIGIOUS FREEDOM RESTORATION ACT ("RFRA")
Having established that the issue in this case is the
redaction policy found in Rule 33-3.012, we turn to our primary
task of evaluating the validity of the Rule in light of RFRA. To
understand how RFRA's compelling interest standard should be
applied in the prison context, it is necessary to understand both
the legal landscape at the time it was enacted and congressional
intent as evidenced by the statute itself and its legislative
history. We first address congressional intent and the case law to
which Congress intended courts to look for guidance.
A. Congressional Intent and the Case Law Background
The stated purpose of RFRA is to restore the broad
applicability of the compelling interest test established in
Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965
(1960), and Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32
L. Ed. 2d 15 (1972), which was substantially circumscribed by
7
We recognize that the district court in Lawson I summarily
rejected the Department's reliance on its previous, informal
redaction policy. Lawson I, 641 F. Supp. at 329. The district
court relied on the requirement set forth in Miller v.
California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973),
that allegedly obscene publications be evaluated as a whole. It
was error to rely on Miller, a case involving the First Amendment
rights of non-incarcerated persons. By contrast, prison inmates
retain only such First Amendment rights as are not inconsistent
with their status as prisoners. Pell v. Procunier, 417 U.S. 817,
822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1974). There is
clearly no per se bar to censorship of incoming prisoners' mail.
See Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104
L. Ed. 2d 459 (1989); Turner v. Safely, 482 U.S. 78, 107 S. Ct.
2254, 96 L. Ed. 2d 64 (1987); Procunier v. Martinez, 416 U.S. 396,
94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974); Abbott v. Meese, 824 F.2d
1166 (D.C.Cir.1987), vacated by Thornburgh v. Abbott, 490 U.S.
401, 407-408, 109 S. Ct. 1874, 1878-1879, 104 L. Ed. 2d 459 (1989);
McCorkle v. Johnson, 881 F.2d 993 (11th Cir.1989).
Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872,
110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). The Act states:
(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test as set
forth in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790,
10 L. Ed. 2d 965 (1963), and Wisconsin v. Yoder, 406 U.S.
205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), and to
guarantee its application in all cases where free
exercise of religion is substantially burdened ...
42 U.S.C. § 2000bb(b).
(b) Exception
Government may substantially burden a person's exercise
of religion only if it demonstrates that application of
the burden to the person—
(1) is in furtherance of a compelling governmental
interest; and
(2) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000bb-1(b). Congress was obviously attempting to
create a statutory buffer around a more limited constitutional
right. Cf. Katzenbach v. Morgan, 384 U.S. 641, 653-54, 86 S. Ct.
1717, 1724-25, 16 L. Ed. 2d 828 (1966) (implying that Congress has
the power to create rights not recognized by the Supreme Court).
That intent was manifest in the statutory language restoring the
compelling interest test.
The text of RFRA, however, does not elaborate on how the
compelling interest test is to be applied. Nowhere in the statute
does Congress state that the test is to be construed in precisely
the same manner in varying factual scenarios and contexts. By
referring to the "compelling interest test," Congress obviously
intended for courts to look for guidance to those cases employing
that term. Astoria Fed. S & L Ass'n v. Solimino, 501 U.S. 104,
108, 111 S. Ct. 2166, 2169, 115 L. Ed. 2d 96 (1991) (Congress
legislates against the background of federal common law
principles).
The Supreme Court has historically applied the compelling
interest standard somewhat differently depending on the context in
which the protected right arose. Procunier v. Martinez, 416 U.S.
396, 409-410, 94 S. Ct. 1800, 1809-1810, 40 L. Ed. 2d 224 (1974)
("First Amendment guarantees must be "applied in light of the
special characteristics of the ... environment.' ") (quoting Tinker
v. Des Moines Independent Community School District, 393 U.S. 503,
506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969)). This is notably
true in the prison context. Indeed, the legislative history of
RFRA expressly assumes that courts will apply RFRA in the prison
context within the framework of prior case law. Both congressional
committees charged with consideration of the legislation clearly
intended the courts to continue to afford deference to the judgment
of prison officials.
The intent of the act is to restore [the] traditional
protection afforded to prisoners' claims prior to O'Lone, not
to impose a more rigorous standard than the one that was
applied.... Accordingly, the committee expects that the
courts will continue the tradition of giving due deference to
the experience and expertise of prison and jail administrators
in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with
considerations of costs and limited resources.... At the same
time, however, inadequately formulated prison regulations and
policies grounded on mere speculation, exaggerated fears, or
post-hoc rationalizations will not suffice to meet the act's
requirements.
S. REP. NO. 111, 103d Cong., 1st Sess. 10 U.S.Code Cong. &
Admin.News 1993 pp. 1892, 1899.
Therefore, the compelling governmental interest test should be
applied to all cases where the exercise of religion is
substantially burdened; however, the test should not be
construed more stringently or more leniently than it was prior
to Smith .... Prior to 1987, courts evaluated free exercise
challenges by prisoners under the compelling governmental
interest test. The courts considered the religiously inspired
exercise, as well as the difficulty of the prison officials'
task of maintaining order and protecting the safety of prison
employees, visitors and inmates. Strict scrutiny of prison
regulations did not automatically assure prisoners of success
in court.
H.R.REP. NO. 88, 103d Cong., 1st Sess. 8; see also 139 CONG.REC. §
14362-14365 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch).
On June 9, 1987, the Supreme Court in O'Lone v. Estate of
Shabazz, 482 U.S. 342, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987),
articulated an unadorned rational basis test for the evaluation of
prison regulations challenged under the Free Exercise Clause.
RFRA's legislative history contains some evidence that Congress may
have intended to restore the standard for the protection of
prisoner Free Exercise rights to where it stood prior to the
Court's decision in O'Lone. However, even prior to O'Lone, the
Supreme Court and the lower federal courts applied the compelling
interest test in the context of prisoners' Free Exercise or Free
Speech claims by recognizing the special circumstances of the
prison context, including recognition of the state's substantial
interest in prison security and order and of the substantial
deference due the judgment of prison officials with respect
thereto. The primary reason for this is the more limited nature of
the First Amendment rights enjoyed by prisoners after
incarceration. In Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct.
2800, 2804, 41 L. Ed. 2d 495 (1974), for example, the Court noted
that "[i]n the First Amendment context ... a prison inmate retains
those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives
of the corrections system." Accord Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S. Ct. 2532,
2535, 53 L. Ed. 2d 629 (1977). See also Cruz v. Beto, 405 U.S. 319,
321, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972); Price v.
Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356
(1948); Bradbury v. Wainwright, 718 F.2d 1538, 1540-41 (11th
Cir.1983).
In cases involving constitutional challenges to prison
regulations, including those implicating the free exercise of
religion, the Supreme Court has long made clear that Federal courts
must afford substantial deference to the judgment of prison
authorities.8 See Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254,
96 L. Ed. 2d 64 (1987); Bell v. Wolfish, 441 U.S. 520, 99 S. Ct.
1861, 60 L. Ed. 2d 447 (1979); Jones, 433 U.S. 119, 97 S. Ct. 2532,
53 L. Ed. 2d 629 (1977); Pell, 417 U.S. 817, 94 S. Ct. 2800, 41
L. Ed. 2d 495 (1974); Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40
L. Ed. 2d 224 (1974); Cruz, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d
263 (1972).9 In evaluating prisoners' constitutional rights claims
8
The cases discussed in the text involve First Amendment
rights, including both Free Exercise and Free Speech. In the
prison context, the Supreme Court and the lower federal courts
have held that the same deference is due the judgment of prison
officials with respect to security and other penological
concerns, whether the case involves Free Speech or Free Exercise
rights. "In the absence of a contrary indication, we assume that
when a statute uses [a term of art], Congress intended it to have
its established meaning." McDermott International, Inc. v.
Wylander, 498 U.S. 337, 342, 111 S. Ct. 807, 811, 112 L. Ed. 2d 866
(1991).
9
All of the cases cited were decided before O'Lone.
that challenge assertions by prison officials that the inmates'
rights must yield before the state's legitimate penological
interests, courts have "accorded wide-ranging deference [to prison
administrators] in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security."
Bell, 441 U.S. at 547, 99 S.Ct. at 1878; accord Jones, 433 U.S. at
128, 97 S.Ct. at 2539; Martinez, 416 U.S. at 404-05, 94 S.Ct. at
1807; Cruz, 405 U.S. at 321, 92 S.Ct. at 1081. Such deference is
especially appropriate with respect to the primary state interest
involved in this case—the maintenance of peace and security within
the prison facility. Pell, 417 U.S. at 823, 94 S.Ct. at 2804
("Central to all other corrections goals is the institutional
consideration of the internal security within the corrections
facilities."). The justifications for this deference include the
complexity of prison management, the fact that responsibility
therefor is necessarily vested in prison officials, and the fact
that courts are ill-equipped to deal with such problems. Martinez,
416 U.S. at 404-05, 94 S.Ct. at 1807.
The standard for evaluating prisoner constitutional rights
claims was initially articulated by the Supreme Court in 1974 in
Martinez.
First, the regulation or practice in question must further an
important or substantial governmental interest unrelated to
the suppression of expression.... Second, the limitation of
First Amendment freedoms must be no greater than is necessary
or essential to the protection of the particular governmental
interest involved.
Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. The two prongs of the
Martinez standard correspond to the two prongs of the compelling
interest test as it has been articulated by the Court in other
contexts: infringement on such constitutional rights is justified
only by a compelling state interest and only when the regulation at
issue is the least restrictive means for satisfying that interest.
Because the first prong is unquestionably satisfied in this case,
and indeed is conceded by the plaintiffs, we focus on the second
prong.
The Court's holding in Martinez teaches that the compelling
interest test is to be employed by recognizing the special
circumstances of the prison context, including recognition of the
state's substantial interest in prison security and order and of
the substantial deference due the judgment of prison officials with
respect thereto. Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807.
The Court noted that although it was applying the compelling
interest test,
This does not mean, of course, that prison administrators may
be required to show with certainty that adverse consequences
would flow from the failure to censor a particular letter.
Some latitude in anticipating the probable consequences of
allowing certain speech in a prison environment is essential
to the proper discharge of an administrator's duty.
Id. at 414, 94 S.Ct. at 1812.10 Similarly, in Bell v. Wolfish, the
Court reemphasized the "wide-ranging deference" to be accorded the
judgment of prison officials.
Such considerations are peculiarly within the province and
professional expertise of corrections officials, and, in the
absence of substantial evidence in the record to indicate that
10
We are aware that the result in Martinez has subsequently
been limited by Thornburgh v. Abbott, 490 U.S. 401, 407-408, 109
S. Ct. 1874, 1878-1879, 104 L. Ed. 2d 459 (1989). However, in order
to elaborate on what Congress meant by using the term "least
restrictive means," we must determine its meaning in the prison
context, as construed by the courts.
the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert
judgment in such matters.
Bell, 441 U.S. at 547-48, 99 S.Ct. at 1879 (quoting Pell, 417 U.S.
at 827, 94 S.Ct. at 2806).
We recognize that, following the Martinez decision, the
constitutional standard employed by the Supreme Court continued to
11
evolve in the direction of a rational basis standard. We also
11
Both prongs of the Martinez standard have evolved in the
direction of a simple rational basis standard. In Turner, the
Supreme Court discussed in detail four cases which followed
Martinez: Pell (1974), Jones (1977), Bell (1979), and Block
(1984). The Court noted that "[i]n none of these four prisoners'
rights cases did the Court apply a standard of heightened
scrutiny, but instead inquired whether a prison regulation that
burdens fundamental rights is reasonably related to legitimate
penological objectives, or whether it represents an exaggerated
response to those concerns." Turner, 482 U.S. at 87, 107 S.Ct.
at 2260 (internal quotations omitted). The Court then concluded:
If Pell, Jones, and Bell have not already resolved the
question posed in Martinez, we resolve it now: when a
prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably
related to legitimate penological interests.
Id. at 89, 107 S.Ct. at 2261. It is clear that the Turner
Court contemplated that both prongs of the Martinez standard
had so evolved. In discussing the "ready alternatives"
factor, through which courts determine if there are
available alternatives to the prison policy at issue that
satisfy the legitimate interests of the prison
administration, the Court asserted that the existence of
such alternatives may be evidence that the policy is an
"exaggerated response" rather than a reasonable regulation.
But the Court was careful to note that,
This is not a "least restrictive alternative" test:
prison officials do not have to set up and then shoot
down every conceivable alternative method of
accommodating the claimants' constitutional complaint.
But if an inmate claimant can point to an alternative
that fully accommodates the prisoner's rights at de
minimis costs to valid penological interests, a court
may consider that as evidence that the regulation does
not satisfy the reasonable relationship standard.
recognize that it is far from clear which precise point in this
evolution Congress intended to select as the appropriate analysis
for the application of RFRA in a prison context. We need not in
this case decide this precise point, because we can assume arguendo
that the appropriate standard is the one set forth in Martinez,
which articulates the appropriate standard in the formulation most
favorable to the plaintiffs, as compared to the formulation found
in the cases that followed Martinez. Applying that standard,
tempered by the deference due prison officials that Martinez
commands, we readily conclude that Rule 33-3.012 passes muster
under RFRA, as discussed more fully below. Accordingly, we need
not and do not in this case decide if Congress intended a somewhat
less demanding standard like the one that evolved in the cases that
follow Martinez and predate O'Lone.
B. Facial Validity of Rule 33-3.012 Under RFRA
Because RFRA provides statutory protection for religious
practice that is broader than the core constitutional right
explicated in O'Lone, and because Martinez represents the zenith of
judicial scrutiny of prison regulations under the light of prisoner
Id. at 90-91, 107 S.Ct. at 2262 (citations omitted). But
see H.R.Rep. No. 88, 103d Cong., 1st Sess. 7-8 ("Pursuant to
the Religious Freedom Restoration Act, the courts must
review the claims of prisoners ... under the compelling
governmental interest test ... [O]fficials must show that
the relevant regulations are the least restrictive means of
protecting a compelling governmental interest.").
As noted in the text, resolution of this case does not
require that we determine the extent to which the Martinez
standard has evolved into a rational basis analysis. It is
sufficient for the resolution of this case to apply the
Martinez standard as written, moderated by the wide-ranging
deference due the judgment of prison authorities which that
opinion contemplated.
constitutional claims, we analyze Rule 33-3.012 utilizing the
Martinez standard articulated above.12 Whether the Rule comports
with RFRA is a pure question of law, and is subject to de novo
review by this Court. See Christopher v. Cutter Laboratories, 53
F.3d 1184, 1190 (11th Cir.1995).
It is well established that states have a compelling interest
in security and order within their prisons. Harris v. Forsyth, 735
F.2d 1235 (11th Cir.1984); Sullivan v. Ford, 609 F.2d 197 (5th
Cir.), cert. denied, 446 U.S. 469, 100 S. Ct. 2950, 64 L. Ed. 2d 829
(1980). In the case at bar, the Hebrew Israelites concede that
Florida has a compelling interest in prison security. At issue are
the means chosen by the state of Florida to satisfy this interest,
which necessarily implicates RFRA's least restrictive means prong.
As explained above, we conclude that Congress intended this second
RFRA prong to be no more vigorous than its corresponding
incarnation in Martinez. Thus, Rule 33-3.012's "limitation of
First Amendment freedoms must be no greater than is necessary or
essential to the protection of the particular governmental interest
involved." Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. In the
application of this standard, we must accord wide-ranging deference
to the judgment of the Department. Moreover, the "prison
12
Because we find that Rule 33-3.012 passes muster under
Martinez—which represents both the statutory standard under RFRA
in the most favorable formulation for which the plaintiffs could
reasonably hope and the historical summit of the Court's review
of prisoner constitutional claims—we conclude a fortiori that the
Rule is constitutional on its face. See O'Lone v. Estate of
Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 2404-05, 96 L. Ed. 2d
282 (1987) (holding that a prison regulation that impinges upon
inmates' Free Exercise rights is constitutionally valid if it is
reasonably related to legitimate penological interests).
administrators ... [are not] required to show with certainty that
adverse consequences would flow from the failure to censor" a
particular publication. Id. at 414, 94 S.Ct. at 1811-12.
Applying the foregoing standard to Rule 33-3.012, we readily
conclude that the Rule satisfies RFRA's least restrictive means
test. Indeed, it is hard to imagine a means more specifically or
more narrowly addressed to the problem posed by passages of text
which the Department has determined may lead to violence or
disruption, or which otherwise pose a threat to security. Abbott
v. Meese, 824 F.2d at 1172-1173. The Rule is explicitly addressed
to the penological interest at stake, namely security. It is not
vague or overbroad and it does not give unbridled discretion to
prison administrators.13 See Vodicka v. Phelps, 624 F.2d 569, 570-
571 (5th Cir.1980) (finding facially valid under Martinez a prison
regulation allowing the withholding of prisoner mail that presents
an "immediate threat" to security); see also Abbott v. Meese, 824
F.2d 1166, 1172-1173 (D.C.Cir.1987), vacated by Thornburgh v.
Abbott, 490 U.S. 401, 407-408, 109 S. Ct. 1874, 1878-1879, 104
L. Ed. 2d 459 (1989) ("If a regulation were to authorize the Warden
to reject a portion of a publication only if he found that the
material would "encourage' violence, or some other specified type
of conduct breaching security or order ... we think that regulation
could survive the minimum Martinez tests."); Gaines v. Lane, 790
F.2d 1299 (7th Cir.1986) (finding prison regulation, which only
13
Under Rule 33-3.012, inmates have a right to appeal
decisions to redact certain sections from religious texts, and
these appeals are heard by a literature review committee. The
plaintiffs do not challenge the district court's ruling that the
Rule does not violate the plaintiffs' due process rights.
allows prison officials to censor mail which presents a threat to
prison security, sufficiently narrowly-tailored to be facially
valid under Martinez ); George v. Sullivan, 896 F. Supp. 895
(W.D.Wis.1995) (upholding prison regulation permitting banning of
white supremacist religious literature, even in light of RFRA's
heightened standard of review).
The plaintiffs argue, relying on the law of the case
doctrine, that this Court's decision in this matter is dictated by
our prior decision in Lawson II, 840 F.2d 779 (11th Cir.1987). The
law of the case doctrine does not apply in this instance for three
reasons. First, this Court's opinion in Lawson II was vacated by
the Supreme Court in Dugger v. Lawson, 490 U.S. 1078, 109 S. Ct.
2096, 104 L. Ed. 2d 658 (1989), with instructions to reconsider in
light of Thornburgh v. Abbott, 490 U.S. 401, 407-408, 109 S. Ct.
1874, 1878-1879, 104 L. Ed. 2d 459 (1989). Accordingly, this Court
is not bound by the vacated decision. United States v. M.C.C. of
Florida, 967 F.2d 1559, 1561-1562 (11th Cir.1992). Second, the
crux of the dispute in Lawson II, and indeed in the whole first
round of this litigation, was a disagreement about the standard of
review that should be applied to the Department's regulations.
Thus, the focus of the briefs submitted to this Court in Lawson II,
as well as the focus of our opinion, was not on the regulations
themselves, but instead was on whether the trend in Supreme Court
prisoner Free Exercise jurisprudence is one leading toward the
application of a rational basis test. Finally, Florida has in the
interim changed its prison regulations governing the admissibility
of religious materials. As written, Rule 33-3.012 is substantially
different from its predecessor, which we considered in Lawson II.
Not only has the law changed, but also the facts of the case have
changed.14
C. Rule 33-3.012 As Applied
In this litigation, no court has been asked to determine which
specific portions of any particular Hebrew Israelite publication
can be redacted by the Department, operating under the authority of
the new Rule 33-3.012, consistent with the Constitution and RFRA.
Indeed, it appears that the Department may not have applied its new
Rule because of this ongoing litigation. It may be that there is
no "as applied" issue in this case. This is a question that will
have to be determined on remand in the district court. As a
practical matter, an "as applied" issue will not arise until a
prisoner challenges a particular Department action. The Department
will have to identify those sections of the Hebrew Israelite
publications that it has decided must be removed pursuant to the
Rule, and the district court will then have to determine if the
Department can redact those specific portions without running afoul
of the United States Constitution and RFRA.15
14
As noted above, the validity of the Department's
application of its previous policy to the religious texts
introduced at trial is moot. The district court erred in
focusing on that issue rather than the only viable issue in the
case—the validity of Rule 33-3.012.
15
Because an "as applied" challenge might be ripe and might
be presented on remand, we provide some limited guidance to avoid
repetition of clear error. In Lawson I, 641 F. Supp. at 329, the
district court may have labored under the misconception that the
Department was required to adduce specific evidence of a causal
link between text that it wants to remove and actual incidents of
violence (or some other actual threat to security). To the
extent that the district court did in fact labor under any such
belief, it erred. Requiring proof of such a correlation
III. CONCLUSION
Pursuant to the above discussion, we hold that Rule 33-3.012
is facially valid under both the United States Constitution and
RFRA. We therefore reverse the decision of the district court, and
remand to that court for an exploration of any "as applied" issues
that may be ripe.
REVERSED and REMANDED.
constitutes insufficient deference to the judgment of the prison
authorities with respect to security needs. See Procunier v.
Martinez, 416 U.S. at 414, 94 S. Ct. at 1812 (Prison authorities
are not "required to show with certainty that adverse
consequences would flow from the failure to censor a particular
letter. Some latitude in anticipating the probable consequences
of allowing certain speech in a prison environment is essential
to the proper discharge of an administrator's duty.").